Last Modified: 8.1.2023
FSM Technologies, LLC d/b/a Service Fusion (“Company”) requires users accessing its website or user of its services, including any entity completing an online order (“Customer”) to accept and adhere to these terms and conditions (the, “Agreement”). This Agreement governs the purchase and use of Company’s services and is accepted by completing an online order that references this Agreement or by using or accessing Company’s services. Company may update this Agreement from time to time and Customer will have 30 days to reject the updated terms by providing written notice to Company. If Customer continues to use or receive the services following such period, the updated Agreement will be deemed accepted.
Online Order. Services will be ordered by Customer pursuant to online orders (each, an “Online Order”). Each Online Order will include the tier/subscription of services being ordered and the associated fees and any additional terms as applicable. Each additional Online Order will be deemed an addendum hereto and will be subject to all of the terms and conditions herein.
Rights for Use. The services include the right to use Company’s software programs and support services described on the online ordering page, for purposes including but not limited to customer account management, project management, estimate and job management, dispatching, invoicing, payment processing, reporting, mobile applications and field management tools for workers, and mobile applications and web portals for customers (collectively, the “Services”). The term “Service Fusion Programs” refers to the software products owned by Company to which Company grants Customer access as part of the Services and any program updates provided as part of the Services. Subject to the terms and conditions of this Agreement and the timely payment of all applicable fees, Company grants Customer the limited, non-exclusive, non-transferable, non-sublicenseable, right to access and use the Company Services solely for Customer’s internal business purposes.
Service Fusion Rewards. Customer may participate in the Service Fusion Rewards program. Participation in the Service Fusion Rewards program requires a third-party payment processor business account to receive rebates. Rebates are distributed by Company and its affiliates to Customer’s third-party payment processor business account. Participation in the Service Fusion Rewards program may require a business account or other enrollment with applicable Service Fusion Rewards third-party partners (each, a “Partner”) subject to such Partners’ separate terms and conditions. Customer’s participation in the Service Fusion Rewards program and request to receive rebates from Service Fusion Rewards Partners via the Service Fusion Rewards program constitute Customer’s instruction and consent for Company and Partners with whom Customer enrolls, to share and exchange information about Customer. Information processed by Partners is subject to their respective terms and privacy policies.
ServiceCall.ai® and e911.ServiceCall.ai® is not a replacement for traditional telephone services. ServiceCall.ai® does not support or carry emergency calling to any emergency services personnel or public safety answering points (“Emergency Services”), such as 911, and may not determine the physical location of call agent and other End Users. Customer understands and agrees that it is Customer’s responsibility to (a) make alternative arrangements for Customer and Customer’s call agents and users that may use ServiceCall.ai® to access Emergency Services and (b) inform all Customer call agents and other users that may use ServiceCall.ai® of these limitations and how they may access Emergency Services via other means, including the alternative arrangements that Customer has made available. Neither Company nor its affiliates will be liable for any damages resulting from any Emergency Services call or any inability to place an Emergency Services call using ServiceCall.ai®. Customer agrees to indemnify and hold Company and its affiliates harmless for any claims referring or relating to any Emergency Services call or any inability to place an Emergency Services call using ServiceCall.ai®.
Accounts; Security. Access to or use of certain portions and features of the Services may require Customer to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including Customer’s password. Accounts are not transferrable. Customer agrees to promptly notify Company if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the accounts. A user license is required for each person utilizing Customer’s master account, or other data generated through the use of the Services. Any sharing of such data to reduce the number of licenses required or sharing account information in any way is strictly prohibited.
Restrictions on Use. In accessing or using the Services, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Services that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Company in any way; or (j) permit any third party to use or access the Services other than your direct employees or contractors who are acting on your behalf.
Maintenance. Customer agrees that Company may install software updates, error corrections, and software upgrades to the Services as Company deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Services for purposes of this Agreement.
Applicable Laws. Customer’s access to and use of the Services is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Services or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Services are compliant with applicable laws is the responsibility of Customer.
Suspension of Services. Company has the right to immediately suspend the Services (a) in order to prevent damage to or degradation of the Services or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Customer prior notice if reasonable and will ensure that the Services are restored as soon as possible after the event given rise to suspension has been resolved to Company’s reasonable satisfaction.
Customer Content. As between Company and Customer, all title and intellectual property rights in and to all electronic data or information submitted to and stored in the Service that is owned by Customer (“Customer Content”) is owned by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, Company may store and maintain Customer Content for a period of time consistent with Company’s standard business processes for the Service. Following expiration or termination of the Agreement or a Customer account, if applicable, Company may deactivate the applicable Customer account(s) and delete any data therein. Customer grants Company the right to host, use, process, display and transmit Customer Content to provide the Services pursuant to and in accordance with this Agreement and the applicable Online Order. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content, and for obtaining all rights related to Customer Content required by Company to perform the Services.
Data Export. If Customer requests Company to provide professional services for the export of any Customer Content, Company will provide to Customer the applicable Customer Content export file via Company’s designated secure delivery method, as feasible. Company will invoice Customer for any such professional service fees, and Company will not perform any professional services until fees related to those professional services are paid in full. Customer agrees that any such Customer Content export files are provided by Company as-is and that Company is not responsible for any errors or omissions in the export file or for any corruption of the Customer Content that may occur.
Aggregated Data. Customer agrees that, subject to Company’s confidentiality obligations in this Agreement, Company may (a) capture data regarding the use of the Services by Customer and its end users, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Company may use, reproduce, distribute and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Company use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
Third Party Services. Third-party technology and services (Third-Party Services”), may integrate with optional Service Fusion Programs as specified on the Online Ordering page, such as text messaging, voice over IP calling, automated appointment reminders, GPS fleet tracking, and template based website development. Customer should contact the service administrator or webmaster for a Third-Party Service if Customer has concerns regarding such Third-Party Service. Company is not responsible for and have has no control over the content of any Third-Party Services and COMPANY IS NOT RESPONSIBLE FOR THE ACCURACY, AVAILABILITY OR RELIABILITY OF ANY INFORMATION, CONTENT, PRODUCTS, DATA, OPINIONS, ADVICE OR STATEMENTS MADE AVAILABLE IN CONNECTION WITH THE THIRD-PARTY SERVICES. AS SUCH, COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH USE OF OR RELIANCE ON ANY SUCH THIRD-PARTY SERVICES.
Except as expressly permitted in this Agreement or as otherwise agreed by Company in writing, Customer is prohibited from linking to the Services, framing of all or any portion of the Services, and the extraction of data from the Services. Company reserves the right to disable any unauthorized links or frames.
Proprietary Rights. Company’s intellectual property, including without limitation the Services, its trademarks and copyrights and excluding any Customer Content contained therein, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Company related to the Services are given to Company and may be used by Company freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Company’s intellectual property.
Payment and Taxes.
Payment. Fees are set forth in the applicable Online Order (“Fees”). Fees owed by Customer to Company will be automatically debited from the bank account or other electronic payment method for which Customer has provided applicable account information and Customer hereby authorizes Company to perform all such debits. An administrative charge of $35.00 per occurrence will be charged for any electronic transaction that is declined. Company, upon notice to Customer will have the right to change Fees effective any time, which right will include without limitation the right to charge a Fee for new features or functions of the Service or for features or functions that have previously been offered at no charge. All Fees are payable in United States Dollars, and non-refundable.
Automatic Payment Terms. Customer authorizes Company to charge the credit card information provided, or debit the bank account information provided, as applicable, beginning as of the Effective Date and subsequent renewal thereafter, for all applicable fees due as defined in the Agreement. Customer understands that this authorization will remain in effect until it is canceled in writing and agrees to notify Company in writing of any changes in Customer’s account information or termination of this authorization at least 15 days prior to the next billing date. If the payment date falls on a weekend or holiday, Customer understands that payments may be executed on the next business day. For ACH debits to a checking/savings account, Customer understands that because these are electronic transactions, these funds may be withdrawn from Customer’s account as of the payment date, and that it will have limited time to report and dispute errors. In the case the ACH transaction is returned for Non-Sufficient Funds (“NSF”) Customer understands that Company may at its discretion attempt to process the charge again within 30 days, and agrees to an additional $35.00 charge for each attempt returned NSF, which will be initiated as a separate transaction from the authorized payment. Customer has certified that the business bank account information provided is enabled for ACH transactions, and agrees to reimburse Company for all penalties and fees incurred as a result of Customer’s bank rejecting ACH debits or credits as a result of the account not being properly configured for ACH transactions. Both parties agree to be bound by NACHA Operating Rules as they pertain to these transactions. Customer acknowledges that the origination of ACH transactions to its account must comply with the provisions of U.S. law. Customer agrees not to dispute these scheduled transactions with its bank or credit card company provided the transactions correspond to the terms indicated in this Agreement.
Upgrades and Downgrades. An upgrade or downgrade (if applicable) of Customer’s Services will not result in a pro-rated refund due to Customer. Upgrades are effective immediately, Company will charge Customer any associated Fee increases as of the date the upgraded features are made available to Customer.
Taxes. Company Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Company may invoice taxes to Customer as required by local law, and Customer will pay such taxes, unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
Term and Termination.
Term. This Agreement will be effective as of the stated date in an initial Online Order (“Effective Date”) and remain in effect until terminated by either party as permitted by this Agreement. The initial term will be stated in the Online Order, thereafter, the term will automatically renew for successive periods equal to the initial term, unless cancelled by either party in accordance with this Agreement.
Termination. Either party may terminate this Agreement by providing 30 days’ written notice prior to the end of the then current term. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 15 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Service, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential Information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Services, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
Disclaimers. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. USE OF THE SERVICES IS AT CUSTOMERS’ SOLE RISK. ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITSELF RESULTING FROM THE USE OF THE SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH CUSTOMER.
Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES CUSTOMER HAS PAID TO COMPANY IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
Indemnification. Customer agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to the Customer Content or Customer’s use of the Services.
Publicity. Customer hereby consents to Company identifying Customer as a customer by name and logo in Company’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Company will have 30 days to process Customer’s request.
Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Company, Customer will send notice via email to [email protected]. Company will send notices to one or more contact(s) on file for Customer. Notices from Company, other than for a breach of this Agreement may be provided within the Services.
Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
Export Compliance. Customer must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Services including technical data and any Services deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Company for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.
Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the state of Texas, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the federal courts of Dallas County, Texas.
Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
Counterparts, Entire Agreement and Order of Precedence. This Agreement or any Online Order may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement, together with any Online Order states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter. If an ambiguity or conflict exists among the documents the order of precedence will be: (a) the terms and conditions of an Online Order; and (b) the terms and conditions of this Agreement. Any preprinted terms on any purchase order are hereby expressly rejected by Company and will be of no force or effect.